US v. Edgar Benitez Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999512432-2] Originating case number: 1:10-cr-00223-CMH-1,1:14-cv-01042-CMH Copies to all parties and the district court/agency. [999585585]. Mailed to: Hernandez. [14-7846]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7846

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR BENITEZ HERNANDEZ, a/k/a Clavo, a/k/a Shadow,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:10-cr-00223-CMH-1; 1:14-cv-01042-CMH)

Submitted:

April 17, 2015

Decided:

May 19, 2015

Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Edgar Benitez Hernandez, Appellant Pro Se.
Patricia Marie
Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edgar

Benitez

Hernandez

seeks

to

appeal

the

district

court’s order dismissing his 28 U.S.C. § 2255 (2012) motion.
grant

a

certificate

of

appealability,

vacate

the

We

district

court’s order, and remand for further proceedings.
Hernandez pled guilty to two counts of use and discharge of
a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2012).

Hernandez did not appeal his conviction

or sentence; instead, he filed a § 2255 motion alleging that he
directed his counsel to note an appeal but counsel failed to do
so.

Without conducting an evidentiary hearing or determining

whether Hernandez unequivocally asked counsel to file a notice
of

appeal,

§ 2255
because
waiver,

the

motion.

district
In

so

Hernandez’s
counsel

court
doing,

plea

acted

denied
the

district

agreement

reasonably

by

relief

on
court

contained
not

Hernandez’s

filing

an
a

held

that

appellate
notice

of

appeal and counsel’s failure did not prejudice Hernandez.
“When the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court’s ruling is akin to
a ruling on a motion for summary judgment [and] we review the
facts in the light most favorable to the § 2255 movant.”

United

States

2007).

v.

Poindexter,

492

F.3d

263,

267

(4th

Cir.

Accordingly, for the purposes of this appeal, we must assume, as

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Hernandez contends, that he unequivocally asked counsel to file
a notice of appeal.

Id. at 267, 269.

The Sixth Amendment obligates counsel to file a notice of
appeal when a defendant requests him to do so; a waiver of
appellate

rights

in

a

defendant’s

absolve counsel of this duty.

plea

agreement

Id. at 268-69.

does

not

Counsel’s failure

to file a requested notice of appeal prejudices the defendant
because it deprives him of his appellate proceeding.

Id. at

269.
Accordingly, we grant a certificate of appealability, grant
Hernandez leave to proceed in forma pauperis, and vacate the
district

court’s

motion.

Because it is not apparent from the record whether

counsel

order

fulfilled

his

denying

relief

obligations

in

on

Hernandez’s

regard

to

§ 2255

Hernandez’s

appellate rights, see Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000),

Poindexter,

492

F.3d

at

271,

we

remand

district court can make this determination.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

so

that

the

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.

VACATED AND REMANDED

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